Saturday, February 27, 2010

Law Commission on Drugs Part 4 - NZ History of drug regulation

Chapter Four - The history and development of drug regulation, pages 44 to 59 of the Law Commission's Controlling and Regulating Drugs discussion document.

This chapter of the paper is split into two parts. The first looks at the history of drug regulation in NZ up to 1975. The second part looks at the time between the Misuse of Drugs Act 1975 to today (4.1).

Opium was widely used in Europe and America in the 18th and 19th Century to treat a range of ailments (4.2). Opium and morphine was introduced to NZ by gold miners, many of whom were former American Civil War veterans who had got hooked on them after being treated for injuries with these drugs (4.3). Opium, morphine and heroin were used in many imported medicines and tonics in NZ toward the end of the 19th Century.

The Law Commission neglects to mention that former Crimean War nurse and all-round good nun Suzanne Aubert was the first person to introduce and grow cannabis in NZ. Just as Queen Victoria used cannabis to alleviate her menstrual pains, Mother Mary Suzanne Aubert (Meri to the locals) made tinctures to treat her patients in NZ.

The first drug law in NZ dealt with opium (4.4):

Opium was first regulated under the Sale of Poisons Act 1866. Bottles or packets of opium laudanum powder and other poisons covered by the Act had to be “clearly and distinctly” labelled and the word “poison” had to appear on the label.

The Opium Prohibition Act 1901 banned the smoking of opium, and was aimed at persecuting Chinese immigrants (4.7). Grains and tinctures of opium were not prohibited, although the Sale of Poisons Act 1908 required importers to be licensed (4.5):

For example, a person could lawfully purchase approximately 24 grains of opium a week from a licensed vendor without a prescription. With a prescription, he or she could obtain up to 16 fluid ounces a week.

Chinese were forbidden from obtaining import licenses, and their residences could be searched without a warrant if there was reasonable cause to believe opium smoking was occurring on their property. After 1910, Chinese were the only ethnicity banned from buying opium without a prescription or a permit from the Minister of Customs (4.8).

Throughout the 20th Century, NZ's drug laws have mirrored international conventions (4.9). The first of these was the Shanghai Declaration (1909), followed by the Opium Convention (1912). The latter introduced controls on morphine, codeine, heroin and cocaine, as well as opium. The International Convention relating to Opium and Other Dangerous Drugs 1924 first introduced controls on cannabis (4.10).

The NZ government enacted this convention with the Dangerous Drugs Act 1927 (4.11). Smoking opium (manufacture, sale, possession and use thereof) was prohibited still, while all Dangerous Drugs listed in the schedule were fully restricted. Licenses were required to make or sell these substances, and could only be acquired for use by doctor's prescription (4.12).

The Medicine Men proved very popular with New Zealanders. From 4.14:

Health records from this period suggest that various drugs covered by the Act were liberally prescribed, particularly once prescriptions were publicly funded after 1941. Heroin was, for example, readily available on prescription in an oral dose form and was used widely in linctuses until the mid-1950s in New Zealand. Regulations made under the Dangerous Drugs Act during the 1940s permitted doctors to prescribe up to 16 oral doses of heroin in one prescription. By the end of the 1940s New Zealand was one of the highest users of heroin per capita in the world.

Barbiturate use in NZ during the 1940's was also high (4.16). Amphetamines became a restricted drug after 1957, not that that stopped Ronald Morrieson of Hawera (writer of Came a Hot Friday and The Scarecrow) using quite a lot of them.

All these international treaties were enacted before the United Nations came into being. The UN brought all these treaties together, as well as expanded upon them, with the Single Convention on Narcotic Drugs 1961 (My headache-in-advance about covering Chapter Six grows more painful). From 4.17:

The Convention, which covered over 100 drugs, was significantly influenced by the prohibitionist approach that was beginning to dominate drug policy in the United States and culminated in President Nixon’s formal initiation of America’s “War on Drugs” in 1971.

NZ ratified this convention with the Narcotics Act 1965 (4.18). The Act introduced the distinction between possession for personal use and possession for supply. It introduced presumed quantities of drugs that would reverse the burden of proof. From 4.19:

If the person could not discharge this burden, he or she could be convicted of the more serious offence of dealing in narcotics. According to the Minister of Police at the time, the original quantities set in the Act were intended to be equivalent to “100 shots or doses” of a drug.

Police powers of search without warrant were introduced. Persons and private property could be searched without a court order if they were thought to be holding prohibited drugs (4.20).

In 1968, the Holyoake government commissioned the Blake-Palmer Policy Review to:

[E]nquire into and report on drug dependency and drug abuse in New Zealand and matters relating thereto and make recommendations.

4.22 continues:

The 1960s had brought significant changes to patterns of drug use in the West. Recreational drug use had become more widespread during the 1960s with the growth in youth counterculture and the emergence of psychedelic drugs. Originating in the youth movement in the United States, the psychedelic “hippie” counterculture spread to other western countries through the 1960s and 1970s. This counterculture promoted experimentation with cannabis and hallucinogens like LSD, mescaline and peyote to explore alternative states of consciousness. Despite the adoption of strong prohibition policies at both the international and national level, the use of such drugs had increased and became almost synonymous with youth culture, protest and social rebellion.

As opposed, for example, to the heroin, morphine and amphetamines that their parents grew up with.

The Blake-Palmer Review reported back in 1973, noting that NZ drug use reflected international trends (4.23) (Mental note here. In the US, the ill-fated Shafer Commission Report was released in 1972). Some interesting stats:

Between 1955 and 1963, the number of people charged with a drug offence never rose above 40 but, in 1972, 700 people were charged with drug offences.

In 2008, drug prosecution charges totalled 20,309. More than half of those, 10,698, were for possession or dealing cannabis. (No easy hyperlink. You have to play around with the Stats' Depts Table Builder).

The Blake-Palmer report recommended a new Act, partly in response to the UN's 1972 Convention on Drugs (4.25). All drugs which are subject to misuse (excluding alcohol and tobacco) were to be included. Maximum penalties would reflect the "relative degree of harm" of these drugs. While criminal sanctions were necessary for enforcement, the report recommended police use their discretion on people who were users not dealers (4.26).

4.27 sez:

The Committee recommended improving the treatment options and support for those dependent on drugs and argued for high quality community education about the risks of drug abuse and dependence. It stressed that one of the most effective sanctions would always lie in the provision of good, soundly based, unemotive educational programmes within the broader context of healthy living aimed at moderating the overall use of chemical substances:
[A]ttitudes of moderation as a norm in our society would, it is believed, do more to reduce the illicit misuse of drugs than over-reliance on criminal sanctionsby themselves.

The Misuse of Drugs Act 1975 (MODA) came into effect on 1 June 1977, one week after the release of Star Wars. The Act followed the Blake-Palmer recommendation of introducing a schedule of drugs (4.29). The Act allowed for a strict licensing regime, including medical and research purposes (4.30), as allowed under the international conventions.

Drugs were classified A, B or C. An amendment in 2000 clarified exactly what harm each Class represented; A was "very high risk", B was "high risk" and C "moderate risk." In the same year, the Expert Advisory Committee on Drugs was formed to evaluate substances (4.31). Note to self; it was Labour not National who introduced the EACD. Not that the EACD changed anything. No drug has changed Class since the original Act was drawn up in 1975 (4.32).

As well as three classes of drugs, the MODA introduced three levels of crime. As well as possession for personal use and supply, a new offence for "dealing" was invented. 4.33 with the nitty gritty:

Dealing is importing, exporting, producing, manufacturing, selling or otherwise supplying or administering a controlled drug to another person... The maximum penalties in the Act were increased in 1979 and have not been changed since. The maximum penalty for dealing in Class A drugs is imprisonment for life; a Class B drug 14 years; and a Class C drug eight years.

The maximum for dealing Class A drugs is the same sentence as murder. Class B is the same as rape, while Class C is like aggravated robbery. You'd have to be drunk as Rob Muldoon to consider that fair and just.

The presumption for supply burden of proof was re-affirmed (4.34). As per Blake-Plamer, possession for personal use had the lowest of all maximum sentences. From 4.35:

The maximum penalty for possession for personal use of a Class A drug is six months imprisonment and a fine of $1000 or both; a Class B or C drug three months imprisonment or a fine not exceeding $500 or both. The Act also contains a presumption against imprisonment for possession or use of a Class C drug. The Act did not incorporate the types of alternatives to prosecution and criminal sanction for drug users suggested by the Blake-Palmer Committee.

Going to show that Muldoon was our own Little Nixon; a hypocrite and drunk in one small vile package.

The Misuse of Drugs Act has been amended many times (4.38). 1978 saw Customs and Police get powers to untertake controlled deliveries, essentially intercepting some drugs in transit, wrapping them up again, and following the parcel to its destination. Detaining someone suspected of holding drugs for up to 21 days was also included here, as was interception of personal communication (4.39).

The MODA 1975 also made drug utensils illegal. 1988 saw an exception for needles obtained through needle exchange programmes (4.40). Designer drugs (4.42) such as Ecstasy were also appearing on the market by this stage, and analogues were added to the schedule of harmful drugs. The rise in methamphetamine saw precursors controlled too. These controls were tightened even further in 2005 (4.45). The 2005 Amendment introduced the new "Schedule D" in response to the flourishing BZP market (4.46). In 2008, another amendment moved BZP into the Class C department.

In the thirty-odd years the MODA has been around, it has been subject to 22 amendments and 10 Orders. "[I]t is questionable whether it now provides a coherent or effective legislative framework" (4.48). The offence and penalty structure has been around for a generation and has never been changed. There are also problems with the presumption for supply in the Act and the Bill of Rights, as successfully argued in the Hansen case (4.49).

But by far the biggest problem is the Act's incompatibility with the National Drug Policy and the principle of harm minimisation (4.50). By criminalising a health matter, the MODA places many barriers between drug users and treatment, education and care (4.53). Harm reduction strategies such as needle exchange programmes are also impaired by the legal status quo (4.54).